Krauthammer: Roberts pulled off one of the great constitutional finesses of all time

posted at 12:41 pm on June 29, 2012 by Ed Morrissey

I’m normally loathe to gainsay Charles Krauthammer on politics or on health care. He has been one of the bright conservative lights in the commentariat for longer than I’ve been in the club at all, and normally I don’t find a need to dispute his point of view. Today, though, I find his declaration of victory in the ObamaCare decision just a wee bit difficult to buy … and fortunately, we don’t have a mandate to purchase it:

It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one of the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature. …

How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.

Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the commerce clause fig leaf.

Yeah. Except, like Allahpundit argued last night, this is a distinction without a difference. Let’s assume for now that future courts will follow the limitations that Krauthammer celebrates in this bill, even though this court didn’t bother to follow Lopez when it had the chance with Raich. Instead of imposing federal mandates in areas outside of actual interstate commerce, all Congress has to do is craft them as taxes. Roberts somehow concluded that people have “choice” in refusing to comply with mandates as long as they’re willing to pay the tax that follows. That’s as absurd as saying that people are free to rob banks as long as they’re willing to pay the “tax” of 20 years in prison.

William Jacobson argues that all of this is self-delusion among conservatives straining to perceive silver linings:

But it is Obamacare, it is the takeover of a substantial portion of our economy which empowers the federal government to write tens of thousands of pages of regulations telling us how to live and how to die.This was the hill to fight on for any conservative Justice of the Supreme Court.

Yet because the conservative Chief Justice sided with the liberal Justices on the result, we have Obamacare.

Whether the Chief Justice did it out of good faith belief in the correctness of his opinion (which is what I believe) or as part of some master plan (the theory some are peddling), the result is the same: Until further notice Obamacare is the law of the land.

Sure, we now are motivated for November. And maybe in the end we will get rid of Obamacare.

But that is then and this is now. And under any reasonable theory of conservative judicial restraint, the Chief Justice should have allowed Obamacare to fall of its own weight, of a weight born of a political process in which the mandate could not be called a tax because the nation would not have stood for it.

On the other hand, John Hinderaker writes at length about Roberts’ decision, disagreeing with it but calling it “reasoned” and respectful of prior precedent. The real lesson for conservatives in this loss is that the Constitution isn’t really a bulwark against federal power, and neither is the Supreme Court:

On these issues, the dissent sometimes makes cogent points and sometimes just splutters. Given the current state of the law, the questions at issue are close ones on which reasonable people (and judges) can differ. But, as I said, I found Roberts’ opinion rather persuasive as an articulation of current law.

One more point we should not lose sight of: the debate over Obamacare may have led some to believe that constitutional limitations on federal power are more significant than is actually the case. There is no dispute–none whatsoever–that under longstanding interpretations of the Constitution, Congress could enact socialized medicine. That would be deemed (contrary to Madison’s understanding) a proper exercise of the federal government’s power to tax and spend on behalf of the “general welfare.” The only reason why Obamacare posed knotty constitutional issues is that Congress elected to force insurance companies to administer socialized medicine on its behalf, in legislation that is essentially National Socialist.

So I am unhappy about today’s result, but not because it is out of line with past decisions of the Court upholding ever-expanding federal powers. Rather, because I had hoped that the current Court was poised to begin undoing many decades of bad jurisprudence. In that hope I was sadly mistaken.

So what is the bulwark of individual liberty against federal power?

Scott made a great point earlier today: contrary to popular belief and its own self-image, the Court has rarely been much of a bulwark on behalf of individual liberty. Certainly it has acquiesced, not just today but for many decades, in a steady expansion of federal power beyond what is contemplated by the Constitution. Today’s decision was disappointing, but probably should not have been unexpected, and would not have been, but for the three days of arguments that highlighted the constitutional problems posed by Obamacare. It has been a long time since we could even hope to rely on the courts to protect us against further accretions of government authority. This is a democracy, and if a majority of our fellow-citizens are content to live as wards of the state, subsisting from cradle to grave as dependents, we are, frankly, screwed. There is only one place where freedom and a proper constitutional balance can be restored: the ballot box.

If there was any victory for conservatives yesterday, it wasn’t in the Roberts opinion, which will almost certainly get ignored when the next “crisis” resolution ends up in the Supreme Court docket. It was the reminder that elections matter. The only cure for ObamaCare is a defeat for Barack Obama and Democrats in November.

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